be understood the King in Possession though he be King de Facta and not de Jure and not the King out of Possession though he be the King de Jure The Acts declared Treason in that Statute are To compass the Death of the King Queen or Prince To Ravish the Queen or the King 's Eldest Daughter or the Prince's Wife To Levy War against the King or to be adherent to his Enemies giving them aid or comfort To Counterfeit the Great or the Privy Seal or the King's Coin To kill the Chancellor Treasurer Judges c. in the Execution of their Office The sense therefore of my Lord Coke's Assertion is That these Acts are Treason when they are committed against a King in Possession whether he be King de Jure or no and not Treason when they are committed against a King out of Possession though he be King de Jure Before I examine the grounds of his Assertion I shall first state the point of Controversy The Question therefore is not Whether some of these Acts may not be punished as Treason under an Usurper if they are committed against the necessary Order of Government and not done for the restoring of the King de Jure to his Crown or promoting his Inrest For the Subiects are obliged to pay a Submission and Obedience to the Usurper as to all Acts of Government that are not destructive of the King de Jure's Rights and interest and therefore if herein they oppose or disturb the Government they may by the Law be adjudged Traytors and punished as such Thus therefore it may be Treason under an Usurper First To Counterfeit or Clip his Coin or to Counterfeit his Broad Seal or Privy Seal or to kill a Judge siting upon the Bench some these Offences touch not the Person or Interest of the Usurper but the Order of Government and as it is just that the Order of Government should proceed under an Usurper so it is just that these Acts against the Government should be punished as well as Robbery Murder and the like as Offences not against the Usurper but the Lawful King Secondly To Levy War against him or to be adherent to his Enemies or to compass his Death out of a private seditious Principle and not out of any regard to the Right and Interest of the Lawful King as suppose any Man should practice with a Forreign Prince to Invade the Nation not in the Lawful King's behalf or should betray any Fort or Castle or any part of the Country to him or the like for these also are Offences not so much against the Person and Interest of the Usurper as against the course of the Government and strike through the Person of the Usurper at the Person and Authority of the Lawful King and in that regard may be justly looked upon and punished as Treason So the Swearing falsly though by an Idol may be looked upon and punished as Perjury because it terminates upon the Majesty of the true God But all this may be granted and yet it does not follow that the Allegiance of the Subjects ought or may be paid to the King in Possession if he be an Usurper for still their Submission and Obedience to him is limited with a reserve to the Right and Interest of the Lawful King The Question therefore must be Whether it be Treason to act against the Usurper in Possession for the Right and Interest of the King de Jure out of Possession to be adherent to the King de Jure to give him and his Party Aid and Comfort and to Levy War against the Usurper for the restoring of the King de Jure to his Crown And whether it is not Treason to be adherent to the Usurper and to Fight for him against the King de Jure out of Possession This therefore must be that which my Lord Coke lays down for Law where he Asserts that Treason lies only against the King in Possession I shall proceed therefore to consider the grounds of his Assertion It is indeed true in Fact that the Acts declared to be Treason in the Statute 25 Edw. 3. will be adjuged and punished as Treason under every King in Possession whether he be King de Jure or no for though he be an Usurper yet while he is in the Throne the Laws Courts of Judicature and every thing else is made to favour his side as much as if he were the most Lawful and Rightful King His Party are held to be the Loyal Subjects in the Eye of the Law and the adverse Party Rebels and Traytors So the Laws may be fitly compared to the Banks cast up against the Sea which are made to keep out an Inundation but when once the Water is got over them they keep it in In like manner the Laws are made to prevent an Usurpation but when once an Usurper is got into the Throne then they are made to become a Fence to him to keep in Possession of it Now there is hardly any Monarchy wherein there have been more Usurpations then there have been in Ours and it ought not to be strange if in all these the Usurpers took upon them to act as Lawful Kings and Obedience was paid to them as such by the Major part of the Nation at least while they continued in the Throne and those that stood by them against the King de Jure whose Rights they had Usurped were looked upon as Faithful and Loyal Subjects and rewarded accordingly and those that rose up against them in behalf of their Rightful Kings were declared Traytors and Rebels and punished as such and so the whole course of the Government ran on their side They called Parliaments and then the Laws were made in favour of their Title they made the Judges and no wonder then if all the Laws as well as the Sat. 25. Edw. 3. were interpreted in their Favour and Treason lay in their own Courts against them only But it s being always thus in Fact is no iust Ground for any Man to declare it to be so in point of Right and to give it for Law that Treason is only against the King in Possession whether he be the King de Jure or an Usurper We may therefore take leave to examine whether there be any better Grounds for this Assertion It would seem a very odd Question for any to ask touching the Laws which are made in any setled Monarchy for the desence of the King's Person Crown and Dignity who is meant by the King in those Laws The Lawful and Rightful King of that Realm or any one that gets into the Possession of the Throne though he be not the Rightful King but an Usurper Common Sense would hardly allow such a Question to be put For the King de Jure and not an Usurper is Truly and Properly King and therefore if the Words of a Law are to be understood in their Natural and Proper Sense the Word King cannot be understood to
Council that any thing can be alleged from that Plea to make out the Lord Chief Justice Coke ' s Gloss upon the Stat. 25 E. 3. C. 2. viz. That the Treasons in that Statute can be Committed only against the King in Possession whether King de Jure or no or to prove That the Allegiance of the Subjects is due to the King in Possession only whether King de Jure or no. 2 ly Though Bagott ' s Council had made such a Plea and the Court had allowed of it yet this is not enough to make it good Law especially when the very Statute of Edw. 3. and other Statutes and the Practice of the Realm even in Edw. 4 th's and after in Hen. 7 th' s and Queen Mary ' s time prove the contrary as was shewed above 3 dly Though there were Statutes and Customs for it viz. That a Man might be Guilty of Treason and punished as a Traytor for acting in behalf of his lawful and rightful King against an Usurper in Possession and not Guilty for acting in an Usurper ' s Cause against his lawful and rightful King out of Possesion yet such a Statute and Custom would be null and invalid as contrary to the Fundamental Constitution of the Realm and to the Law of God and Nature as will appear under the next head the Stat. 11 Hen. 7. c. 1. which I come now to consider This Statute is my Lord Coke ' s main proof of his assertion That Treason lies only against the King in Possession and may be urged as sufficient by it self to make it Law since that time though it had not been so either by Statute or Common Law before and it is also made a distinct Argument to prove directly That Allegiance is due to the King in Possession only The main of the Statute is in these Words The King our Sovereign Lord calling to his remembrance the Duty of Allegiance of his Subjects of this his Realm and that they by reason of the same are bound to serve their Prince and Sovereign Lord for the time being in his Wars for the Defence of him and the Land against every Rebellion Power and Might reared against him and that for the same Service what Fortune ever fall by chance in the same Battle against the Mind and Will of the Prince it is not reasonable but against all Laws Reason and Good Conscience that the said Subjects going with their Sovereign Lord in Wars any thing should loose or forfeit for doing their true Duty and Service of Allegiance It be therefore ordained enacted and established by the King our Sovereign Lord that from henceforth no manner of Person or Persons whatsoever he or they be that attend upon the King and Sovereign Lord of this Land for the time being in his Person and do him true and faithful Service of Allegiance in the same or be in other Places by his Commandment in the Wars within this Land or without that for the said Deed and true Duty of Allegiance he or they be in no wise Convict or Attaint of High Treason ne of other Offences for that Cause by Act of Parliament or otherwise by any Process of Law whereby he or any of them shall lose or forseit Life Lands c. but to be for that Deed and Service utterly discharged of any vexation trouble or loss provided always that no Person or Persons shall take any benefit or advantage by this Act which shall hereafter decline from his or their said Allegiance The Statute consists of two Parts the Preamble and the Body and upon the view of it we may observe 1 st That it is not enacted in the Body of the Statute that the Subjects shall be obliged to pay Allegiance to the King for the time being so that if what is enacted in the Body of a Statute only be Law then the Allegiance of the Subjects is not due by Virtue of this Statute to the King for the time being The direct intent of the Body of it is to indemnifie those that fight under the King in Possession and their being indemnified for fighting under him is no Argument that it is lawful for them to do it much less that it is their Duty for they may be Guilty in foro interno of Treason and Rebellion for fighting under the King in Possession against the King de Jure and yet it may not be unjust or improper to indemnifie them in foro externo by such a Statute 1 st Because many that fight under the King in Possession do it in the Simplicity of their Hearts 2 ly Because this would prevent any revengeful effusion of Blood by the King de Jure at his coming to the Crown All therefore that the Body of the Statute proves is that though by the Stat. 25 Edw. 3. it were Treason to fight for an Usurper against the King de Jure out of Possession yet he that fights for an Usurper against the King de Jure out of Possession is indemnified by this Statute and so he is not punishable as a Traytor though he has the Guilt of Treason upon his Conscience and if he may still be Guilty of Treason then still his Allegiance may be due to the King de Jure out of Possession so as to oblige him not to act any thing against him in behalf of the Usurper 2 ly We may observe upon the view of the Statute that the Preamble of it does not directly and positively declare that the Allegiance of the Subjects is due to the King for the time being but only obliquely supposes and insinuates it The King is said to call to his remembrance his Subjects Duty of Allegiance and that they by Virtue of it are bound to fight for the King for the time being c. This is not to declare it to be so by Virtue of the Authority of King and Parliament to interpret the former Laws about the Subjects Allegiance but to suppose it as a thing certainly fixed and determined by the Law already and so also it is obliquely insinuated in the Body of the Act that their fighting under a King de Facto is doing their true Duty and Service of Allegiance And if this be only supposed and that Supposition have no ground neither in the Fundamental Constitution of the Realm nor in any former Statute or Custom but these all do all of them clearly demonstrate the contrary as was shewed above then I think the Preamble of this Statute cannot be urged upon the Consciences of the Subjects as a Law obliging them to transfer their Allegiance from their lawful King to any Usurper getting into the Possession of the Throne and to Fight under the Usurper against their lawful King if he attempt to recover his Crown 3ly We may observe upon the view of this Statute that one thing laid down in the Preamble as the ground for the indemnifying part of the Act is expresly false viz. That it is not
not amount to a consent For their cause of their not repealing it may be First Because the subsequent Kings since Henry the 7 th have not had any occasion to see the evil consequences of it by any general complyance of the Nation with an Usurper against their lawful King under colour of being obliged thereto by this Statute Secondly The Statute has been generally understood to do no more than Indemnifie those that fight under the King de Facto and this our Kings might not look upon as unjust or inexpedient and therefore might see no necessity of repealing the Statute But it cannot be conceived but that any lawful King who had been excluded or deposed by an Usurper and had seen that the Nation had looked upon themselves as obliged by this Act to stand by the Usurper against him would if ever he had come to the Crown have made it his business to declare it null and invalid Secondly This Statute has in effect been declared to be null and invalid by the subsequent lawful Kings and Parliaments I say it has been in effect declared null and invalid though not expresly repealed by the subsequent Kings and Parliaments and that in two ways First By their proceeding expresly contrary to the Letter of it Secondly Their laying a contrary Obligation on the Consciences of the Subjects First By their proceeding expresly contrary to the Letter of this Statute The Statute enacts That those that serve the King for the time being in his Wars shall be in no wise convict or attaint of High Treason by Act of Parliament or otherwise by any process of Law And that if any Act or Acts or other process of Law hereafter thereupon for the same happen to be made contrary to this Ordinance that then that Act or Acts or other Process of the Law whatsoever they shall be stand and be utterly void Now if notwithstanding this any Persons have for acting that for which this Statute Indemnifies them been convicted and attainted of High Treason by Process of Law and executed thereupon and this Conviction and Attaindor and their execution thereupon has been declared by Act of Parliament to be Lawful and Just and according to the Laws of the Realm It follows that the Authority whereby they were convicted attainted and executed and their attaindors confirmed in Parliament must be looked upon to declare this Statute null and invalid And yet we did a plain instance of this in the case of the Duke of Northumberlund c. in Q. Mary ' s time The Duke of Northumberland had been sent down with an Army by Order of Council and by a Warrant under the Great Seal in behalf of Queen Jane the then alone Proclaimed Queen against Queen Mary for this Treason he is afterwards tryed by his Peers attainted and executed and his attaindor confirmed in the next a 1 Mar. Sess 2. c. 16. Parliament and therein he and other Persons are declared to have been lawfully justly and according to the Laws of the Realm convicted or attainted and to have suffered the pains of Death according to their demerits And yet this could not be looked upon as according to Law if the Stat. 11 Hen. 7. were looked upon as valid Which will more clearly appear if we consider that the very Plea of the Duke of Northumberland seems to be grounded on this Statute His Plea consisted in two points which he proposed to the Court one whereof was b Dr. Burnet ' s Hist Reform p. 2. p. 248. ld Reflection on the 3 d. and 4 th Tomes of Mr. Varillas as p. 126. Though this was a point in Law that might have some colour in it yet it was far from confounding any for a Council or a Great Seal flowing from an Usurper is nothing so this Authorty could not justify him Whether a Man acting by the Authority of the Great Seal and the Order of the Privy Council could become thereby guilty of Treason To this the Court with the advice of the Judges made answer That the Great Seal of one that was not lawful Quen could give no Authority nor Indemnity to those that acted on such a Warrant Now if this Plea were legally over-ruled upon this Ground and he thereupon attainted and executed and his attaindor confirmed in Parliament as Just and Legal it plainly follows that the Judges and and his Peers which over-ruled his Plea and the Parliament which confirmed their proceedings do in effect declare the Statute 11 H 7. null and invalid and must be conceived either not to have though of it or if they did to have looked upon it either as temporary only for King Henry ' s Reign or as of no Force or Authority because tending to the disherison of the lawful Queen But it may be said Queen Jane was not in full Possession of the Crown being only Proclaimed Queen and not continuing in the Throne more then ten days I answer First She was Proclaimed Queen by the Lords of the Council and by the City and in most great Places of the Kingdom and had taken upon her the Exercise of the Government and had her Council and Great Seal c. And if this be not enough to make her Queen in Possession it is to be shewed what more was necessary to make her so and upon what Grounds especially when it appears that Queen Mary her self was no more then Proclaimed when the Duke of Northumberland c. was tryed attainted and executed by her Authority Neither was she so much as Proclaimed when he committed this Treason against her for immediately after she was Proclaimed by the Lords of the Council he before he received their Orders submitted and a Dr. Burnet's hist Reform P. 2. p. 239. Proclaimed her himself at Cambridge Secondly If this be sufficient to take off the Argument from the Proceedings against the Duke then this rather should be the Ground whereupon his Plea was over-ruled but it is plain that both his Plea and the Answer the Court made to it by the Advice of the Judges suppose Queen Jane to have been Queen in Possession and his Plea was not over-ruled because she was not in full Possession but because she was not lawful Queen and therefore her Great Seal could give no Authority nor Indemnity to those that acted by such a Warrant And if this Ground be good and legal as we see it was conceived to be by the Judges and allowed of by the Peers and the Parliament it plainly nulls King Henry's Statute and justifies the Attainting for Treason any Person that fights against a King de jure out of Possession though by a Warrant under the Broad Seal and an Order from the Council of an Vsurper in full Possession Secondly The Statute 11 H. 7. has been in effect declared null by the succeeding lawful Kings and Parliaments in as much as they have laid the contrary obligation upon the Consciences of the Subjects For if the succeeding Kings
him much trouble already and was likely to create him more when Perkin Warbeck was up yet he was resolved to stand or fall by it and studied only how to secure himself in his unjust Possession and rather then depart from what he had done already to the disherison of one Family he was content to make a Law which effectually disinherits his own Children or any other Lawful King or Heir of the Crown if they are so unhappy as to have an Vsurper step before them into the Throne or dispossess them when they are in it Yet both these Statutes fully discover the Wisdom and Policy of the Legislator for they carry in them the fairest shew and colour of equity and justice but serve in reality to the contrary design What more just then that the Inheritance of the Crown should be rest remain and abide in the King if it were lawfully vested in him already and what more true and easie for a King lawfully possessed of the Crown to call to his remembrance then that his Subjects owe him Allegiance and by vertue of it are bound to fight for him against a Rebellion or Vsurpation and ought not to be attainted for it by any subsequent King or Parliament This in the Preamble of the Stat. 11. of Hen. 7. And nothing can be more agreeable to all Laws Reason and good Conscience if it be meant of the rightful King regnant But if it be meant as really it was by King Henry at least of the King for the time being as such whether rightful King or no It is Absolutely false within the Practice as well as Memory of King Henry 7. who himself had attainted Richard 3 d. the then King for the time being and those that fought for him in Bosworth Field and should not have forgot to repeal that Statute whereby they stood attainted when he remembred that it was against all Laws Reason and good Conscience to attaint any Man for Serving in the Wars under the King for the time being It appears therefore that this Law was not made bona fide and such a Law may ensnare and impose upon the Consciences of the Subjects but is not fit to direct or oblige them Unless we can conceive that his Saying he remembred it to be so for the time past when he knew it to be otherwise is enough to make it to be so for the future I have considered as fairly and impartially as I could the Grounds whereupon some now give it for Law that Allegiance is due only to a King in Possession I shall add one or two Arguments against this Position And First Allegiance is not due only to a King in Possession because England is an hereditary Monarchy where there is no Interregnum but the Right Heir of the Crown is actually King at the very moment when his Predecessor dyes And yet it may be a considerable time before he can take upon him the Exercise of the Government as suppose he be in a Foreign Country If therefore he be actully King before he can be in Possession of the Exercise of the Government then the Nation are his Subjects before he is King in Possession in the sense of this question and consequently he has a right to their Allegiance though not yet King in Possession But to this some would answer by a distinction of a twofold a Consident for the taking of the Oath of Allegiance 32. right ARight to the Possession of the Crown and a Right to the Allegiance of the Subjects The Right to the Possession of the Crown they would say descends to the Right Heir immediately upon his Predecessor's decease and in that Sense he is actually King But the Right to the Subjects Allegiance is annexed to the Possession of the Crown and therefore does not accrue to the Heir of the Crown till he is in Possession And for this distinction they produce some kind of Authority from the form of Expression in the Act of recognition b Bagott's Case 6. E. 4. p. 9. 10. of Edward the 4 ths Right to the Crown where he is declared to have been in right from the death of the Noble Prince his Father Richard Duke of York who was slain at the Battel of Wakefield Dec. 30. 1460. very just King of the Realm yet because he did not take upon him to use the said Right and Title to the said Realm till on the 4 th of March following and then entred into the Exercise of the Royal Estate c. and to the Reign and Government of the said Realm From thence is dated his being in lawful Possession of the same Realm with the Royal Power Preheminence Estate and Dignity belonging to the Crown thereof and his being lawfully Seized and Possessed of the Crown of England in his said Right and Title and from thenceforth to have to him and his Heirs all Mannors Castles Honours Services Gifts of Offices Prerogatives c. To this may be replyed First Other Parliaments express themselves in a manner inconsistent with this distinction So most fully the Parliament a Sess 2. c. 4. 1. Mar. By and immediately after whose Edw. 6ths Decease the Imperial Crown of this Realm with all Dignities Dominions Honours Preheminences Prerogatives Stiles Authorities and Jurisdictions to the same united annexed or belonging did not only descend remain and come unto our most dread Sovereign Lady the Queen's Majesty but also the same was then immediately and lawfully invested deemed and judged in Her Highness's most Royal Person by the due course of Inheritance and by the Laws and Statutes of the Realm Nevertheless the same her Highness's most lawful Possession was for a time disturbed and disquieted by the Traiterous Rebellion and Usurpation of the Lady Jane Dudley c. This is Prefaced in that Act as the Ground whereupon the Queen and her Parliament saw a necessity of confirming those Recognizances Bonds c. That bore date as in the First Year of the Reign of Queen Jane viz. Because though Queen Mary was not yet in Possession by the Lady Jane's Vsurpation yet all Authority and jurisdiction being invested in her Person any thing under the Name of Queen Jane wanted a just and lawful Authority I may add to this the Recognition of b 1 Jac. c. 1. King James 1 st where the Parliament declares that immediately upon the Dissolution and Decease of Queen Elizabeth the Imperial Crown of the Realm of England and all the Kingdoms Dominions and Rights belonging to the same did by inherent Birthright and lawful and undoubted Succession descend and come unto his most Excellent Majesty Secondly I have sufficiently proved above c Sup. p. that Treason lay always against our Kings even before they were in Possession And if so then a Right to the Allegiance of the Subjects is not a consequent of Possession but antecedent to it I may add to the Proofs brought above the resolution of all the Judges in King
again when Ed. 4. returned and deposed King Hen. Ed. 4. c. 7. a Second time then Ed. 4. in his next Parliament d Abridg. of the Records 14 Ed 4. n. 34 35. 36. attaints those that had acted against him on King Henry's side So also Hen. 7. himself e See a large Catalogue of their names in Baker's Chr. in the begining of the life of Hen. 7. attainted by Parliament those that fought against him under Rich. 3. in Bosworth-field And Queen Mary first convicted and then in her First Parliament f 1 Mar. Sess 2. c. 16. attainted the Duke of Northumberland c. for acting for Queen Jane against her Now their attainting those that opposed their obtaining or re covering the Possession of the Crown shews that they did not attaint them of Treason as acting against a King in Possession but as acting against a King de Jure whether in Possession or out of it I might add that in the Parliament 4. Ed. 3. the Murderers of Ed. 2. g Abridg. of the Records 4. Ed. 3. n. 5. a King Deposed and out of Possession are Attainted of Treason But here my Lord Coke h Coke's Institut part 3d. p. 7. He says it was Treason before the Stat. 25. Ed. 3. to kill the King's Father or Uncle but that the Statute restrained it to the killing the King Queen or Prince says something which may take of the force of the Argument viz. that this was Treason not as Ed. 2. had been once King but as he was the Father of the King Regnant and that upon the same ground the Murtherers of Edmond Earl of Kent were Attainted of Treason by the same Parliament because he was the King's Uncle If Treason by the Practice and Custom of the Realm lay only against the King in Possession then certainly a King in Possession himself cannot be guilty of Treason for what he does while in Possession much less can be guilty for what he does against a King out of Possession and yet we shall find the very Kings themselves who are looked upon as Usurpers as well as their adherents attainted or declared guilty of Treason by the subsequent Kings and Parliaments So in the Parliament 1. Ed. 4. King Hen 4. himself is declared a Traytor for puting to Death Rich. 2 after Richard was Deposed and Hen. himself was in full Possession of the Crown The words are i Rot. Parl. 1. Henry Earl of Derby against his Faith and Ligeaunce reared War at Flint in Wales against the said King Rich. Ed. 4. n. 9. in Dr. Brady's Hist of the Succession Printed for Cave Pulleyn 1681. p 30. Year Books 9 Ed. 49. 2. him took and Imprisoned in the Tower of London of great violence And the same King Richard so being in Prison and living usurped and intruded upon the Royal Power Estate Dignity taking upon himself the name of King and Lord of the same Realm And not therewith satisfied or content but more grievous things attempting wickedly of unnatural unmanly and cruel Tyranny the same King Richard Anointed Crowned and Consecrate and his Liege and most high Lord in the Earth against God's Law Man's Legiance and Oath of fidelity with the uttermost punition attermenting Murdered and destroyed with most vile heincus and lamentable Death c. Besides in the same Parliament 1 Ed. 4. Hen. 6. k Abridg. of the Records 1 Ed. 4 n. 17. 21 22 23 24. is several times Attainted first for the Death of Richard Duke of York at the Battle of Wakefield then for delivering up Berwick to the King of Scots and procuring him to Invade England and practicing to deliver up Carlisle to him and lastly for being in Arms against Ed. 4. in the Bishoprick of Durham all which Treasons were commited before King Edwards Coronation and so before he was King in full Possession and the first Treason lies against Richard Duke of York who was not King but only Declared Heir to the Crown 39 Hen. 6. by l Abridg. of the Records 39 Hen. 6. 11. 20. 22. Agreement between Hen. 6. and the Duke that Henry should be King for his Life and the Duke after him which Agreement though it left Hen. 6. still King in Possession yet it seems he was judged liable to an Attainder of Treason for fighting against the Person that had the Right Title to the Crown Neither did Hen. 6. when he was again Restored to the Crown Attaint only the adherents of Ed. 4. but m Trussel's Continuation of Daniel's Hist p. 189. himself also And in like manner Hen. 7. Stat. 17 Ed. 4. c. 7. with his Parliament Attainted n Baker's Chron. in the beginning of the Life of H. 7. King Rich. 3. for being in Arms against Hen. 7. in Bosworth Field So also did Queen Mary Attaint o 1 Mar. Sess 2. c. 17. Queen Jane for Usurping her Crown Now if we reflect upon these Proceedings of our Kings and Parliaments that they always Attainted those Kings whom they looked upon as Usurpers it plainly follows that they proceeded upon this Principle that our Law allows of no other King but a King de Jure and therefore when an Usurper gets in to Possession of the Crown though while he has the Laws in his Power they must seem to be of his side yet when once the Government is free it looks upon him as no King but considers him as a Subject of and a Rebel and p Sat. 17. Traytor against the King de Jure For if an Usurper were truly King he could not then be guilty of Treason Ed. 4. c. 17. except against himself so that if there be a Person against whom the Law makes him a Rebel and Traytor there H. 6. is called a Rebel against Ed. 4. then it follows that the Law looks upon that Person only as King and the Usurper as still his Subject though King in Possession Thirdly If Treason lay only against the King in Possession whether King de Jure or no then when once there is an Usurper got into the Throne the Subjects must look upon themselves as obliged upon pain of High Treason not to admit of any claim of the King de Jure nor to attempt to bring him into Possessien of his Right during the Usurpers Life though they are fully convinced in their Consciences of his just Title to the Crown for this were to be adherent to the Enemy of the King in Possession But this notion of their Duty to the King in Possession it appears the Nation had not formerly from the Case of Richard Duke of York when he came to put in his claim to the Crown in the Parliament 39 Hen. 6. Q Abridg. of the Records 39 H. 6. n. 10. seq Rot. The Lords in that Parliament alledge against the Duke's claim all that King Henry's Council could suggest to them in behalf of a King in Possession Parl. 39. H. 6
uphold and maintain the Laws and therefore any King's Acts of Government though he be an Usurper must be held valid That they themselves limit the validity of the Grants of a King de Facto that they be not to the diminution of the Crown That they do not argue from any Statute of the Realm That what they say is not directly Answered to or denied by the Council on the other side nor by any of the Judges but one of the Judges Billing seems to declare his Opinion upon the Reason of the thing to the same purpose and all the Judges with the advice of the Judges of the Common Pleas determine the Case in savour of Bagott This is the utmost that can be made of this Case and d Tit. Treason N. 10 Brooke in his grand Abridgment makes no more of it Nota says he Dicitur non negature quod de proditione factâ tempore H. 6. que fuit Usurper del Crown le party sera arraigne pour ceo tempore E. 4. vel bujusmodi pour compassant le mort de Roy H. 6. quod nota sic vide quod trespasse tempore unins Regis poet estre puny tempore alterius Regis comment que I un fuit Usurper He Observes that it is said i. e. by Bagotts Council and not denied i. e. by the Council against him or the Judges That Treason against H. 6. Compassing his Death may be punished by Ed. 4. or any other lawful King The reference that Brooke has in the Margin is 4 E. 4. i. e. but there is nothing there in the Year-Books of that nature and the very words make it appear that he quotes Bagotts Case and therefore it seems to be a mistake of the Press for 9 Ed. 4. 1 2. which Brooke after e N. 28. refers to in the same page for the same thing and I believe my Lord Coke Transcribing these quotations out of Brooke took them for two distinct quotations whereas really are one and the same And if this be the utmost this Case amounts to then first it is not Authority sufficient to make it Law that this was plèadèd by Council and not denied by the Judges or the adverse Party Secondly Neither if we grant the particular points in the Plea will it follow either that Treason by our Law lies only against the King in Possession or that our Allegiance is due to him only And this will appear by considering the particular points contained in the Plea As First That the Judicial Acts and Grants of a King de Facto shall stand good when the King de Jure recovers his Crown This they themselves limit to such Grants as are not to the diminution of the Crown And Equity and Reason allows that the Acts of Government done by an Usurper neither to the prejudice of the Community nor of the Lawful King's interest may and ought to be reputed valid after the Lawful King's return for those Acts not being against his Right and Interest and being necessary to the very being of the Government under the Usurper while he cannot be Deposed from his Usurped Power those Acts say the King de Jure himself is to be presumed to ratifie by his Consent and Allowance and therefore upon this presumption they become valid and Authoritative by vertue of his Authority and not the Usurpers So all Laws made by the Usurper in Parliament for the publick Good all Sentences passed in Courts all Commissions granted by him all the Actions of the Ministers of State and inferiour Magistratesacting under his Commission as far as the Reason of Government requires and they are no prejudice to the Rightful King ought to stand in full force even when the King de Jure comes to the Crown And upon this ground Bagott's Patent for Naturalization was looked upon as valid even against the Letter of the Statute 1 E. 4. c. 1. which Statute by Confirming some Grants of II. 4 5 6. might seem to anull all the rest which it did not Confirm and so the Council against Bagott urge it and yet Bagotts Patent was held good though not Conflrmed by that Statute which shews that it was held good not by vertue of any Written Law but because as Bagott's Council Plead the Reason of Government and common Equity requires that such Acts of an Usurper should stand good as tend not to the diminution of the Crown But then this is no proof that all other Judicial Acts and Grants whatsoever though tending directly to the prejudice of the Lawful King should be looked upon to Oblige him at his return or to bind the Consciences of his Subjects while he is out of Possession for though the King de Jure may be presumed to consent to and the Subjects are allowed to Obey the Usurper's other Acts of Government yet this cannot be extended to those Acts that strike at the Authority and Interest of the King de Jure himself Nor can we suppose that Bagott's Council Pleading here in Edw. 4 time and before his Judges would say that any of H. 6. Acts done plainly to the disherison of King Edward were to be looked upon as valid nor can we conceive that King Edward ' s Judges would have admitted such a Plea if the Council had made it This therefore may be enough to shew that the Plea of Bagott's Council may be approved of in this point and yet it is no good consequence that every Act of an Usurper is Authoritative or that the Subjects are obliged to pay Allegiance to him 2. The Second point in the Plea of Bagott's Council is That the King de Jure at his return to the Crown shall have the advantage of all Forfeitures for any Trespasses committed against a King de Facto and that he may Punish Treason committed against a King de Facto by any one that compassed the King de Facto ' s Death This also is very true if we restrain it to such Acts against the King de Facto as the Right and Interest of the King de Jure does not require or justifie the doing it For First There are many Offences which are only against the Order of the Government and the Peace of the Society or the Rights of some private Persons and not against the King de Facto's Person or Crown as Theft Murder Perjury and some kinds of Treason as Clipping and Coyning killing a Judge upon the Bench Counterfeiting the King's Seal adhering to a Foreign Enemy that makes War not upon the Usurper as such in the Lawful King's behalf but upon the Nation and so implicitely upon the Lawful King whose Interest would be ruined if a Foreigner should Conquer the Nation betraying any Fort or Castle or the like Now these Offences are justly punishable by the King de Jure himself when he comes to the Crown or by the inferiour Magistrates acting under the Usurper ' s Commission while the King de Jure is out of Possession they
are justly punishable by himself because they terminate upon his Authority and upon the interest which he has in the regular and orderly Prcceeding of the Government though he is excluded from the Administration of it They are punishable also by the inferiour Magistrates by vertue of his presumed Will Authorizing them to act for his and the Nation 's Interest though under an Usurper And upon this ground we find that Judge f Dr. Burnet's Life of Judge Hale p 36 c. Hale did not scruple to Try Felons under Oliver Cromwel though he scrupled to Try any Offenders against the State Secondly There may be some Acts against the very Person and Crown of the Usurper which may be done out of a private seditious Principle or for the interest not of the King de Jure but some other Person merely to disturb the Government or to set up a Second Usurper in the place of the First Now these Acts may be justly pnnished as Treason either by the Inferiour Magistrates under the Usurper or by the King de Jure when he comes to the Crown For First These Acts strike indirectly at the King de Jure ' s Person and Crown through the Usurper and therefore either himself may punish them as done against himself or the inferior Magistrates may punish them by virtue of his presumed Will and Consent Secondly The Necessity of Government requires that the Laws and Courts of Judicature stand by the King in Possession though an Usurper against any other Person pretending to the Crown but the Lawful King And therefore an attempt to kill or depose him to make way for another Usupation may be justly punished as Treason even by the King de Jure himself and his Consent may be presumed to authorize the inseriour Magistrates to do it during his Exile Thus therefore it might have been just for Edw. IV. to attaint of Treason any Person that had compassed the Death of King Hen. VI. or levyed War against him for any other end and purpose than to promote King Edward ' s Interest and to bring him to the Crown And so this second point of the plea of Bagott ' s Council may be allowed of But then it is no consequence that any Acts done against the Usurper in behalf of the King de Jure to bring him to the Crown may be justly punished either by the Usurper or by the inferiour Magistrates under him or much less by the King de Jure himself when he comes to the Crown Neither is it conceivable that Bagott ' s Council meant this by their plea that those who Acted against Hen. VI. to bring Ed. IV. to the Crown might be Attainted by Ed. IV. for Traytors and Rebels for fighting against Hen. VI. the King in Possession in King Edward's behalf this would have been a beld Plea in King Ed. IV's time and before his Judges and yet this must be their Plea to prove from it that Treason can be commited against only the King in Possession It may be Objected that the Attaindors of Pesons by a King de Facto for fightingagainst him in behalf of the King de Jure have been looked upon as valid by the Kings de Jure when they came to the Crown For instance Rich. 3. had Attainted those that came against him under Hen. 7. and his Parliament declare Richard to be an Usurper yet they thought not fit to let any of them whom he had Attainted sit in Parliament g Bac. Vit. Hen. 7. p. 1004. till their Attaindors were first taken off which is a confession that they looked upon their attainders as valid till they were repealed To this I Answer First Rich. 3. though he was an Usurper being not the First of the Blood of the House of York yet his Title to the Crown was good against Hen. 7. he being of the House of Lancaster and not the First of the House neither his own Mother being alive 2. But Secondly Granting that Hen. 7. and his Parliament looked upon Hen. 7. as King de Jure and Rich. 3. as an Usurper of the Crown as they stile him their thinking it proper to take off the attaindors of those whom Rich. 3. had attainted is no certain proof that they looked upon their attaindors as valid for though they had looked upon them as null in themselves yet they might think fit to Repeal them for the satisfaction of the Nation and the security of the Persons Attainted who might otherwise have been liable to be Execited upon these Attaindors if there should have been a turn So no question Ed. 4. looked upon the Proceedings of the Parliament 49 H. 6. Summoned by Hen. 6. when Ed. 4. in the ninth year of his Reign was fled out of his Realm wherein himself and all his adherents were Attainted as null and invalid else he would have Repealed those Proceedings in his next Parliament yet eight years after he thought fit to Repeal them h Stat. 17. Ed. 4. c. 7. for the surety of his Noble Person his Noble Issue and the inheritable Succession of the same and for the surety of all the Lords Noblemen and other his Servants and Subjects i. e. to secure them from any danger from the Attaindors in that Parliament if there ever should be a return of the Lancastrian Family Thirdly Granting that King H. 7. and his Parliament did look upon these Attaindors as valid what is the consequence viz. that they allowed it was Treason to fight Rich. 3. the King in Possession though an Usurper in behalf of Hen. 7. whom they conceived to be the King de Jure Then sure if they thought it was Treason to fight against Rich. 3. the King in Possession they could not look upon it as Treason to fight for him And yet the very same Parliament i Bac. Vit. H. 7. p. 1004. 1005. Attaints both Rich. 3. himself and all those that fought under him in Bosworth Field So that we see what good Law we are like to have if we believe every thing which may be given us for Law out of the Statute and Year-Books for then we may upon the Authority of the very same Parliament make it Treason on both sides to fight for Hen. 7. against Rich. 3. and to fight for Rich. 3. against Hen. 7. The former to fight against Rich. 3. that Parliament is conceived to allow to be Treason because they looked upon the Attainders of those whom Rich. 3. had Attainted for being in Arms against him as valid till they were Repealed and the latter to fight for Rich. 3. they declared to be Treason because they Attainted those that were in Arms under him against Hen. 7. Before I pass on to the last point of Bagott ' s Plea I may from this Second Part of it give an Answer to one of the most specious Arguments that is brought to prove that our Allegiance is due to the King de Facto though not de Jure The
Children that shall Vsurp the Crown before their time how can this be understood with a reserve that if any of them should Vsurp and get into the Throne the Subjects then should be obliged to abett and maintain them 3. But 3 ly the Question is not so much whether the succeeding Kings and Parliaments have repealed the Statute 11 H. 7. as whether they have not looked upon it always as null and of no Authority and I think their passing Acts of Attaindor contrary to the Letter of it and making it Treason to stand by an Vsurper and obliging the Subjects to Swear to defend the lawful King and the Succession against all Persons whatsoever is a sufficient proof that our Kings and Parliaments ever since the 25 th of Hen. 8. have looked upon the Statute 11 H. 7. as of no Authority and in effect declared it to be null and invalid II. But granting that this Statute was made by a Legal Authority and has stood ever since unrepealed I proceed to shew in the second place that it is to be looked upon as in it self null and invalid in respect of the matter of it A Statute though made at first by a lawful Authority and not after repealed by any subsequent Parliament may yet be looked upon as null and invallid if the matter of it be impossible or unjust if it be repugnant to Common Sense or contrary to the Law of God and Nature So the Lord Chief Justice Coke observes Inflit. P. 2. p. 587. in his Commentary upon the Stat. de asportatis Religiosorum one branch of which Statute he says was declared by the Court of Common-Pleas to be void because impossible and inconvenient to be observed and quotes Bracton for the Properties of a Law Lex est sanctio justa jubens honesta prohibens contraria It may be therefore a sufficient proof of the nullity of this Statute that it is not as Bracton requires Sanctio justa jubens honesta prohibens contraria but rather as I shall proceed to shew a Statute establishing Iniquity by a Law For it either devests the lawful King of his Right to the Crown and gives it to the Usurper or it still reserves his right to him but yet notwithstanding orders the Subjects to obey and stand by the King in Possession tho an Usurper The first of these cannot fairly be pretended for if it gives away the Right of the lawful King then 1 st He ceases to be King de jure the lawful and rightful King of this Realm and this besides that it is contrary to what our Lawyers allow takes away the ground of this whole dispute the distinction between King de jure and the King de facto 2 ly He cannot then justly make War upon the Nation for the recovery of his Crown but must sit down quietly by his loss and is answerable for all the Blood that is shed in the War he makes if he attempt to restore himself by a Foreign Force for if his Right be tranferred he cannot then justly demand the Subjects Allegiance and what he cannot justly demand that he has no right to use force for the recovery of and therefore must be content to stay till the Usurper dye and then perhaps his Right may revive again unless the Usurper be so wise as to provide himself a Successor and leave him in Possession 3 ly It will follow if this Statute give away the Right of the lawful King to the Usurper that one King with his Parliament may make a Statute to alienate and transfer the Right to the Crown from those that are the lawful Kings by the Fundamental Constitution of the Realm to such as by the Fundamental Constitution are not the lawful Kings but Vsurpers Now this I conceive is not in the Power of any King and Parliament however Legal much less of such as Henry 7 th and his Parliament was We have a Fundamental Constitution whereby England is determined to be a Monarchy and that antecedently to any Statute Lan. This Constitution vests a Right in some certain Person in every Age who is by Vertue of the Right vested in him the lawful and rightful King of this Realm whether this Person be he next in Blood to the former King or another of the Royal Line to whom the Crown descends by Vertue of a Limitation of the Succession from the next in Blood to him for whether the one or the other of these is the rightful King he is so by Vertue of the Fundamental Constitution which vests the right to the Crown in him Now for any one King with a Parliament to make a Law that for the future not the next Heir of the Blood nor any other to whom the Succession is limited but any Person whatsoever that shall get into Possession of the Throne tho it be by deposing a rightful King regnant and usurping his Crown shall from thence forth become the rightful and lawful King and the right of the Prince that he has dispossess'd be devolved upon the Vsurper is effectually to subvert the Fundamental Constitution of the Realm and if it be in the Power of the King regnant and his Parliament to do this then it follows that any King with a Parliament may deprive the lawful Issue of his Brother and set up a Bastard of his own that they may exclude and disinherit the whole Royal Line and entail the Crown upon the King of France or any other Foreign Prince they may lay aside the whole right of Succession and make the Monarchy Elective that they may change the form of the Government into a Republick and make the Kings no more then Consuls or Dukes of Venice and vest the Supreme Authority in the Senate or People In short that England is no longer a Monarchy or Hereditary then the King regnant and his Parliament pleases And yet if these things were done by any King and Parliament I believe it would be looked upon as an Injury to the subsequent Kings or to the Royal Line and they would be justified if they would not allow any such Statute to have any force but protest against it as Illegal and of no Authority and yet all this might be done according to Law if the King and Parliament have a Power to alienate and transfer the Right of all the subsequent lawful Kings to any Vsurper that shall be strong enough to depose or exclude them But I needed not to have proved this which is supposed in the question viz. that this Statute does not give away the Right of the lawful King deposed or excluded but still leaves him King de jure and reserves to him a right to claim and recover his Crown only it obliges the Subjects notwithstanding to stand by the King in Possession though an Usurper I shall therefore proceed upon this Supposition and shew that this Statute as it requires the Subjects to stand by the Usurper in Possession against their rightful and
to fight for them against the King and the Royal Family and they that acted against them were to be judged Rebels and Traytors 2. The Truth of this Principle seems to depend upon one of these two Grounds either 1st because the Subjects enjoy all the Common Benefits of Civil Government from this Protection of the King de Facto and in return for them are bound to pay him their Allegiance by the Law of Gratitude Or 2 ly because the King de Facto has the Lives and Fortunes of the Subjects at his Mercy and therefore it is at least Lawful for them when their rightful King cannot rescue them out of his Hands to swear a new Allegiance to him 1. The Subjects enjoy all the Common Benefits of Civil Government from this Protection of the King de Facto and therefore in return for them are obliged to pay him their Allegiance by the Law of Gratitude To this I answer 1 st I granted above that the Subjects are to pay some degree of Submission and Obedience to a King in Possession though an Usurper for their own Safety and the publick Order and Peace of the Nation and upon the presumed Will of the King de Jure 2. It does not appear that they are obliged to pay him even this degree of Submission and Obedience on the score of Gratitude for the Power and Authority whereby he takes upon him to protect them is not his own but the lawful King's and he first deprives the Subjects of the lawful King's Protection before he tenders them his own and therefore in effect takes away from them as much as he gives and besides invades the Subjects Rights who were not obliged to be Subject to any but their Lawful Prince and his not depriving them of Protection is only forbearing doing them a farther Injury so that though they reap some benefit from his Protection and ought in Prudence to comply with him as far as it is Lawful yet it does not seem that they are obliged to it upon the score of Gratitude 3. But though they were obliged in point of gratitude to pay him some degree of Submission and Obedience it does not follow that they can lawfully transfer their Allegiance to him for that is not their own to give but there is still a reserve of it due to the rightful King when it can be Exerted for his Service 2. But Secondly The King de Facto has their Lives and Fortunes at his Mercy and therefore it is at least Lawful for them when the King de Jure cannot Rescue them out of his Hands to save their Lives and Means of subsistence by swearing Allegiance to that Person who has them in his Power To this I Answer That swearing Allegiance ' implies two things 1. A full and entire Submission so as never to attempt any thing against the King de Facto for the King de Jure And this when they must do it or dye may seem to be Lawful because their Death deprives the King of so many of his Subjects and their engaging never to Act for him does no more and is but the same as if they should take Quarter of an Enemy in War that has them at his Mercy And this may be true where there is so Service to be done to their King's Cause and the true Profession of the Principles of Loyalty by their suffering Death and Sacrificing their own Lives towards the recovery of a Nation from a Principle of Rebellion to a true Sense of their Allegiance But in most Usurpations there is first a Rebellion of the Subjects and an Apostasy from he Principles of Loyalty and in this case it may be considered whether any whose Examples might have influence upon the 〈◊〉 of the Nation may not be obliged even to loose their Lives for the King de Jure because here their Deaths may do some service to Religion and the King's Cause whereas in War their dying rather then to take Quarter and make themselves Captives to an Enemy that has their Lives at his Mercy would do their King so Service at all 2. Allegiance imports an Engagement of the Subjects to stand by and maintain the King in Possession against the King de Jure and this if any of them engages to do the King de Jure does more then than lose a Subject for he gets an Enemy who if he Act according to his new Engagement is obliged even to oppose him to the Death if he endeavours to recover his Crown But why may not this be done since the end for which Men are placed under a Government is the Preservation of their Lives and Properties and therefore when that Protection fails them whereby they should be Preserved without any fault of their own their rightful King being deposed or excluded and unable at present to recover his Right and they at present reduced to those Streights that they must either make themselves the Subjects of the King in Possession or suffer Death or lose the necessary means of Subsistence why may they not in this case give themselves up to him that has them in his Power and swear Allegiance to him This then is the main Ground The end for which we are placed under a Government is Protection when that Protection fails us and our Lives and Fortunes are at Stake then we may for our own Preservation put our selves under another Protection and swear Allegiance to the Person who has us in his Power Let us consider whither this Principle will carry us 1 st It allows us to swear Allegiance to any Person that gets our Persons and the means of our Subsistence into his hands and before we can have Protection from the Government will either kill or ruine us if we do not reneunce our King and put our selves under his Command to stand by him against all Persons whatsoever This Person may be the head of a Rabble a Jack Cade a Robin Hood a Massaniello or who not For it is not the Person that Authorizes our Subjecting our selves to his Government but the Power he has to force us to it at the Peril of our Lives 2 dly It is not only our duty to the King that this Principle justifies the Deserting of but also all other Obligations which are incumbent upon us as we are Members of a Civil Society and Subjects to a Government For instance in our constitution the obligation we are under to the Succession of the Royal Line to the Fundamental Constitution of the Monarchy as it is not Despotick and Arbitrary but limitted by Law in the Exercise of the Royal Authority and also to the present Legal Establishment wherein are included the Rights of all our fellow Subjects to their Lives Liberties and Properties To these Rights we are obliged as Subjects of the English Monarchy as well as to the King's Person Crown and Dignity Now suppose a King should design to destroy any one of these for instance the Right of